*1 (No. 49358 . al., et N. ANDERSON Appellants,
CHARLES JOSEPH al., et SCHNEIDER Appellees. 1, 1977. Opinion March
Announced filed June *3 MORAN, part. J., took GOLDENHERSH, J., dissenting.
WARD, G.J., and Schwerin, of Chicago, S. Franklin Kreloff Michael for appellants. Louis I. Raucci, appellee of Chicago, M.
Andrew Lang. delivered the
MR. DOOLEY opinion JUSTICE court: case wherein a new
This is an election from the office were removed and its candidates public board, decision was electoral whose township affirmed the circuit court of Cook County. Kaufman, Anderson,
Plaintiffs, Edmund H. Charles N. Flicht, Abrams, R. L. Eleanor Don Carl Arnold Copeland, McGrath, Gubitz, Cans, I. L. Erna Edward “Spike” filed a in the circuit court Cook County against petition Geroulis, and defendants, Schneider, A. Earl Joseph James Numrich, Officers H. the members of the Niles Township *4 Board, order that reversal of an Electoral plaintiffs’ seeking in a election on the ballot names not be township printed 5, whose for 1977. Louis L. objection set Lang, upon April entered, a defendant. was also made order was the board’s denied the of Cook The circuit court County petition, to this court. appeal prosecuted expedited plaintiffs 21, reversed oral we On March argument, following court, and directed of the circuit plaintiffs’ judgment 1977, election, names on the ballot for April appear to follow. with our opinion 31, 1977, their nomination filed
On January plaintiffs clerk, to form new with the township seeking papers Caucus called the Township Independent political party of the Election Code to section (Ill. 10—2 Party, pursuant to Plaintiffs Rev. Stat. ch. proposed par. 2). 10 — offices for the run under that label township eight party filled election. be at April 10 of the Election of article Section 10—2 part Code, of with nomination which deals independent for minor candidates and candidates of parties political in section both local offices. The State and provides as follows: pertinent part *** ny desiring hereafter group persons “[A] any municipality or district party
form new in political or petition less file with clerk county than a shall such municipality or of such Board of Election Commissioners *** Any petition case such shall may district as the be. concisely may signers intention of declare as as be the *** in such thereof to form such new subdivision; or shall state not more district political party; than new shall 5 words name such all contain a list such *** or political such district offices filled be, ensuing may next subdivision as case added.) election then to be held Ill. Rev. (Emphasis ***.” 46, par. ch. Stat. 10 — 2. italicized of section also portion applies Gubitz, nominations statewide offices. Plaintiff Carl L. trustee, nominee for the office was township since he had not resident been ineligible, township for one Rev. statute. Stat. year required (Ill. was ch. The board Gubitz par. 83.) agreed *5 it and directed that his not on the name
ineligible, appear ballot. The have that had Gubitz not parties stipulated a been resident for one and the board’s action with year, is to him not also Plaintiffs respect challenged. expressly disclaim contention that the durational any residency is unconstitutional. requirement order, however, The board’s directed that the name of Caucus and the names of Party Independent Township seven other candidates also be removed from party’s the ballot. That order on was based that proposition with Gubitz a form new being disqualified, petition did not with the of section party comply requirement that the nomination a 10—2 contain list papers of for all candidates offices to filled. Plaintiffs contend such a that construction of section is aas 10—2 improper matter of construction. Plaintiffs further statutory urge that the conduct of the and the circuit board court due violative clauses of equal process protection the Federal and State constitutions.
Section could well be construed as requiring more a than that new the names disclose it run, each office whom plans which would serve to obviate the requirement possibility that candidate run also or as the independent might candidate some other forbidden party, practice section 10—7 of the Rev. Stat. ch. Code (Ill. par. ex rel. Czarnecki 7). (See People Schnackenberg 10 — 320; ex 256 Ill. rel. McCormick v. People contend, Czarnecki Ill. Defendants 372.) however, that new section 10—2 requires any slate, full to run a with one candidate nominated makes office which is to be filled. The case every present this statute manifest difficulties such construction of would entail. assert, that it and defendants do not
Plaintiffs deny, was neither nor of them was any charged proved durational residence failure aware of Gubitz’s to meet state- out Gubitz’s Plaintiffs also point requirement. with peti- ment of circulated nominating candidacy, tion, face would disclose its which contained nothing the statement his On the contrary, repre- ineligibility. defend- that he sented was consequence eligible. burden each candidate the ant’s place upon position other require- continued residency, verifying *6 candidate. The other of for every ments eligibility, what of burden is not reasonable. Since imposition turns a of residence in upon constitutes part person’s place Board School his Stein v. intention Country (see of best, is, task Trustees 40 Ill. the 2d 477), (1968), election, likewise one. In the case a statewide difficult of 2, it Under controlled section would be impossible. by 10— order, candidate would the circuit court one ineligible cause entire slate to fall. the from the ballot the the strike electoral board
May as well name of the Caucus Party, Township Independent candidates, as of its because the that of seven eighth residence candidate has not fulfilled statutory require- electoral The sanction board and ment? by imposed one. It affects not only circuit court was harsh Nor have the candidates but those of voters. rights such a sanction is reason defendants why suggested any the electoral process. necessary protect integrity that the of the States It is now well recognized power conduct voter qualifications determining consistent with must exercised in manner elections due clauses equal protection process and with the interrelated fourteenth amendment right is associate which guaranteed purposes 23, Rhodes 393 U.S. first Williams v. amendment. (1968), 24, 5; Evans v. S. Cornman L. Ed. 89 Ct. 21 2d (1970), 419, 370, 1752; Bullock 90 v. 398 L. Ed. S. Ct. U.S. 26 2d 134, 92, Ct. 31 L. Ed. S. Carter 405 U.S. 2d 92 (1972), 172
849; v. 709, Lubin Panish 415 U.S. 39 L. Ed. 2d (1974), 1315; 94 S. Ct. Storer v. Brown 415 U.S. (1974), 1274; 39 L. Ed. 94 S. Ct. 2d McCarthy L. Briscoe U.S. 50 Ed. 97 S. Ct. 429 10; Communist v. State Board Elections Party Cir. (7th 518 517. 1975), F.2d
It is obvious that is a fundamental in our voting right “No system more in a free government. right precious than that of a voice in the election country of those having who which, citizens, make the laws under we must good live. Other basic, even the most if the rights, illusory vote right undermined.” v. Sanders Wesberry 1, 17, U.S. 11 L. Ed. Ct. S. The of the electoral importance American process life is demonstrated the fact that since less than amendments to the Federal eight Constitution XII, XV, XVII, XIX, XXII, XXIII, XXIV, (amends. XXVI) are concerned with and electoral rights voting procedures. remarks in The Federalist are following pertinent: As it is liberty govern-
“First. essential ment in general should have common interest with the *** people, dependence should have an immediate [it] *7 on, with, and an sympathy people. Frequent intimate are unquestionably only elections policy which dependence this and sympathy effectually can be 52, secured.” 1 The (A. Federalist No. at 360 (1901) Hamilton or Madison). J.
Such as come within the ambit political rights voting of the clause. “It has been established in equal protection recent Protection Clause confers the years Equal substantive on an basis with right participate equal other voters whenever has an State qualified adopted electoral for who will process any determining represent of the State’s San Antonio Inde- segment population.” 1, School District v. 411 U.S. pendent Rodriguez (1973), n.2, n.2, 16, 1278, 59 L. 36 Ed. 93 S. Ct. 1310 2d 58 n.2 v. Panish Lubin J., (Stewart, concurring), quoted
173 702, 707, 709, 713, L. 94 S. U.S. 39 Ed. 415 2d (1974), 1315, 1318. Ct. a recent decisions United States
In series of extent to which State has limited the Court Supreme restrict access to the ballot by may constitutionally v. Williams candidates. minority by independent 32, 23, 32, 89 L. Ed. Rhodes 393 U.S. 21 2d (1968), 11; v. U.S. S. Ct. Bullock Carter (1972), 849, 855-56; 143-44, 92, 99-100, Ct. 31 L. Ed. S. 2d 709, 716, 39 Ed. v. Panish L. Lubin 415 U.S. 702, 708-09, 94 S. Ct. that undue burdens
We have been told repeatedly cannot be upon independent constitutionally imposed inter- or some State candidates without justifiable parties 724, 746, 39 L. est. In Storer Brown U.S. the United States Ed. 94 S. Ct. unconsti- Court, California imposed holding Supreme the ballot restriction on access to tutional independent President, and Vice for the offices of President observed:
“*** interest No discernible state justified burdensome and regulations complicated alternative to in effect made any impractical here, we major perceive parties. Similarly, sufficient state interest in conditioning on his for candidate an independent position as the State a new long forming the candidate is itself that is free to assure with a contender, serious truly independent, level community support.” satisfactory for exists state interest” o discernible Obviously, “[n] to associate of seven candidates the rights denying voters, because eighth and those of party, one a resident candidate has not been township year. are those of involved here
It is true the directly rights *8 174
the
for office.
But the
of candidates and
rights
of voters
not
those
“do
lend themselves
to neat separa
tion”; each statute
some
candidate has
effect
affecting
134, 143,
on the voter.
v. Carter
405 U.S.
(Bullock
92, 99,
31 L. Ed.
the
2d
S. Ct.
That
856.)
process
of
a candidate a
on the ballot
because
denying
place
of other candidates
vulner
ineligibility
constitutionally
able
manifest
from Lubin
Panish
particularly
415 U.S.
39 L. Ed.
“This state must legitimate be achieved means does or not unfairly burden either or unnecessarily minority party’s an individual inter- candidate’s important equally est continued availability not The interests involved opportunity. candidates; those or individual merely parties
175 their only assert voters can preferences the it is this both and or or candidates parties through in the must be interest weighed broad to a an individual a or balance. right party and is is to a ballot entitled protection on place the voters. intertwined with rights of is burdened to vote heavily right ‘[T]he for of two one vote be cast only if that may are when other parties at a time parties Williams on the ballot.’ clamoring place Rhodes, 23, 31 393 U.S. (1968). vote the to This must also mean right be cast that vote only burdened’ if may ‘heavily election candidates in for one of two primary are other candidates clamoring a time when that a It is to be expected the ballot. on place who a candidate find on the ballot voter to hopes on his near to policy preferences comes reflecting issues.” supplied.) (Emphasis contemporary 708-09, 94 S. L. Ed. U.S. Ct. anif burdened” to vote “heavily the
Certainly right from the ballot are removed and its candidates entire party the residence has not satisfied an candidate because eighth ” to be Here the “broad interest weighed requirement. [s] candidate, the party, balance rights interest is no necessary there and the voter. Certainly the removal of the ballot justifying preserve integrity from the ballot because all candidates its of the party The conduct of candidate. of a of want of single eligibility of the circuit court and that deprived the electoral board for the to assert their the voters preferences right that all statutory of their notwithstanding party such a ballot for the party placing requirements fulfilled. had been which is to interest of the broad
We be conscious must served, of individual candidates namely, rights avail themselves of and those of opportunity voters to be exercise effective given opportunity choice. The basis which the and the candidate upon were removed from the this instance was a violation first amendment and of the equal clauses of both the State and Federal protection constitu- tions.
Section contains no language authorizing board remove candidates because candidate qualified for another office is found to be As ineligible. previously noted, defendants deduce that from power require *10 ment that a new run a slate. In with our to construe enact keeping obligation legislative ments so as to their sustain where such constitutionality construction is a reasonable alternative Educa (Board of 413, tion v. Ellis 60 Ill. v. Nastasio 2d 416; People 524, 19 Ill. we hold section confers 529), of all the removal of the candidates authority because one is unqualified.
We also consider that action of board court violated due circuit approved process. A similar situation arose in Briscoe Cir. Kusper (7th 1046, 435 also nomination F.2d 1970), involving pro cedures, and decided to Lubin. There the of Board prior Election of of several Commissioners the city Chicago kept off the ballot alderman independent some on because names of nominators more appeared than one board its The based action nominating petition. on a section of Election which that Code stated “each voter to subscribe one may nomination for each office to filled, be and no 46, more” Rev. Stat. ch. (Ill. par. (435 F.2d board held that 10—3). 1054.) with this compliance was provision mandatory, although the board had prior years held this was provision and that its directory violation did only, not affect
177 aof nominating petition. validity attack first protection rejected equal
The court shown had not been the board since action on the board’s race, the basis on geographical have discriminated affiliations. beliefs, or location, party poverty, on then went the court But 1052.) F.2d (435 association, access including freedom hold that the due under ballots, process was election protected thus Briscoe 435 1053-54.) clause. F.2d (See Court decisions Supreme the later foreshadows court stated any Lubin. In Bullock Bullock and to vote must on an adverse right impact having practice “found scrutinized, reasonably and must be closely state legitimate to the accomplishment necessary muster.” (405 constitutional in order pass objectives 92, 100, Ct. S. 134, 144, L. Ed. U.S. “The of a or in Lubin the court said: And right 856.) entitled to an individual to a place of voters.” with intertwined rights protection 702, 708, L. 94 S. Ct. 415 U.S. Ed. 2d in Briscoe also held that The court appeals due action of the board violated Since procedural process. the statute in did not itself notice that question give invalidate a would duplication signatures nominating the board could not so construe the statute petition, *11 without advance to candidates. The warning prospective court stated: of whether the more restrictive
“Regardless of the Board or constitu- was statutorily position valid, of the new anti- tionally application rule nullify acceptable duplication previously unfair and without notice was signatures prior instance, due In this the former violated process. 10—3 was not of Section only interpretation reasonable, but it also application represented
of the statute least associa- limiting tion. An be bound its agency may own by established custom and as well as its practice by formal The Board not regulations. deviate may from such rules of decision on the prior applica- of a fundamental directive bility without an- in advance its is nouncing This change policy. where, here, true fundamental, especially con- liberties stitutionally protected adversely affected, and those interested certain require of what knowledge them expected by state. Until such time as the Board makes public determination, its new it constitutionally pro- hibited from that rule on imposing unsuspecting persons.” (435 F.2d 1055.) So here the candidates had no reason to believe the board would the statute construe to read “a question list of candidates” when General eligible complete in its rational and constitutional Assembly, prerogative, used the term “a list of candidates.” Our task in a statute is a narrow one. Whatever construing be, interstices of the our may legislative process obligation is to to the intent expression give legislature. v. Bratcher v. G. 63 Ill. 542; Berry (People 2d (1976), D. Searle & Co. 553; Certain 56 Ill. 2d (1974), v. Sheahen than 45 Ill. More Taxpayers 2d (1970), 83.) that, is, it whenever possible, give product General a constitutional (Board of Assembly meaning. Education v. Ellis 413, 416; 60 Ill. People Nastasio 19 Ill. Here the construc 529.) tion statute both electoral board upon by placed and the circuit of Cook falls short of court County simple due process. board, electoral the decision officers
Following to file a certificate of nomination plaintiffs attempted vacancies fill what contend were caused they *12 contest Defendants ballot. from the removal plaintiffs decision of our action, view of that but the effectiveness that issue. not we need upon pass that dissent urges Goldenhersh’s Mr. Justice and that candidates list of a complete statute requires Here a attack such does not requisite. court opinion one was candidates, but only list of a there was complete to the contrary positions The General Assembly, ineligible. list there that dissents, complete not exact did of both candi- list of candidates, but complete only of eligible dates. not that we states Goldenhersh
Mr. Justice the individual “whether petitioners to decide required as on independent to remain were entitled the constitutional on candidates,” that the discussion however, is, that fact issues was unnecessary. the names all ordered electoral board township This was the ballot. conduct be not printed circuit Such necessitated discus- affirmed court. only on the constitutional not rights, sion of the effect of the electorate. but also those the petitioners, of Cook County court circuit The judgment reversed. reversed.
Judgment in the considera- MORAN took MR. part JUSTICE of this case. tion or decision
MR. WARD, CHIEF dissenting: JUSTICE I would add this comment only Golden- Justice hersh’s dissent. The persuasive majority acknowledges a court must effect to what the intended, give legislature but then it remarkably (to me) ignores plain language we should read “a says list of candidates” “a list of candidates.” This of course has the effect of sentence, and it nullifies the rewriting legislature’s specification (“*** complete list”). GOLDENHERSH,
MR. with whom MR. JUSTICE CHIEF WARD joins, dissenting: JUSTICE dissent,
Mr. Chief I Ward and and would affirm Justice *13 the of the In circuit court. our the judgment opinion has the and miscon majority ignored explicit language strued the intent and of section of the purpose 1975, 46, Election Code Rev. ch. Stat. (Ill. par. 2). 10 — 1975, 46, Election Code Rev. Stat. ch. (Ill. par. 1 — 1 et for scheme both the seq.) provides comprehensive nomination candidates and inde by political parties here, candidates. Insofar as is section pendent pertinent 1975, 46, of the Rev. ch. 7-2 Code Stat. (Ill. par. 7—2) which, that a is one at the election provides political party for town officers next the cast more preceding primary, than five in of the entire vote cast the town. percent 1975, 46, Article 10 Rev. Stat. et ch. 10 — 1 par. (Ill. seq.) the manner of nominations a “new provides by making is, that one which has not political party,” qualified by more the than five entire vote cast receiving percent within the election next township preceding If it casts the five of the entire primary. required percent vote, “new becomes “established political party” and thereafter the nomination of its political party” candidates is of article 7 by governed provisions (Ill. Rev. et Stat. ch. 7 — 1 Section 10—3 of par. seq.). the Code Rev. Stat. ch. (Ill. par. 3) provides 10 — for the method of candidates. nominating independent
Such matters as the order of candidates’ names Elections, ballots State Board 57 Ill. (Huff v. 74) the status of nominees named group nominating in the those allocation petitions positions 63 Ill. are believed to widely (Bradley Landing, 91) be of to candidates and have been importance recently considered this court. certain by Similarly, advantages to stem in a believed from the association of candidates as from political party independ- distinguished running ents. It has been these suggested among advantages of the efforts of the combined candidates availability slate, and their election of the entire supporters which can be effected and the savings joint advertising workers, voter, the fact that a employment column, circle at the marking appropriate top casts a ballot for the entire ticket. it was the intent
Obviously, legislative who to result from believed associa sought advantages tion in a meet certain one of requirements, which is that the formation of such petition party “shall contain a list of candidates of such *** for all offices to be in the filled subdivision ” *** *** held; next then election to be ensuing Rev. Stat. ch. in the (Ill. par. 2). Nothing 10 — serves to this unrea majority render opinion requirement sonable or unconstitutional.
The states that ection majority contains no “[s] the board to remove candi- language authorizing qualified dates because a candidate for another office is found to be Ill. at then ineligible” to (67 discuss 176) proceeds at constitutional great issues which are not length present- ed this We record. were confronted, not here were nor we decide, to whether required the individual petitioners were entitled to remain on the ballot as independent candidates. Their for relief asked prayer only defendant be ordered to the names of the print individual Independent and the Township petitioners Caucus Party on the official ballot and no alternative relief. Had sought such alternative relief been and denied there sought might be some conceivably reason for the and, under lengthy these circumstances, completely constitu- unnecessary, tional discussion in the majority opinion. majority also appears conclude that requirement list of complete candidates can, manner, some be “ from distinguished ‘a list of candi- eligible ” not unreason dates.’ Ill. It does (67 appear 179.) that a form a new able political party group purporting that its candidates are determine required qualified run Under the rationale offices seek. they a new could field a slate of majority opinion all one of but them were knowing result and thus achieve bizarre ineligible placing the ballot “new with candidate. party” single flout so To thus intent demonstrated clearly legislative is violative of the statutory explicit provisions established rules for the construction of statutes.
(No. 48316 . ILLINOIS, THE OF THE STATE PEOPLE OF Appellant, AVERY, FRANKLIN v. BRUCE Appellee. August Opinion filed